Suresh and another vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta, J.—This criminal appeal is preferred by the appellants being aggrieved by the judgment dated 31/12/1996 passed by the Special Judge, Sagar in Special Case No.1/1996, whereby the appellants were convicted for commission of offence punishable u/s 354 of IPC and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act, 1989 (for brevity "Special Act") and sentenced for one year''s rigorous imprisonment with fine of Rs.200/-for each count. In default of payment of fine, seven days'' rigorous imprisonment was also directed. The prosecution''s case, in short, is that on 16.10.1995 the prosecutrix (PW-2) was going from her village Pipariya Matoli to village Setpur by foot along with her husband Halle Bhai (PW-4). The way for the village Setpur was not known to her, and therefore due to mistake she went to the plantation of village Marpani. The appellant Bhairam was grazing his cattle there in the way. When the prosecutrix asked him to show the appropriate road, then he also accompanied the prosecutrix and her husband. After going towards the village Setpur other accused persons also met in the way and thereafter the appellant Bhairam also involved with other co-accused persons. The accused Rakesh held her hands and took her in the jungal and remaining accused persons ran towards her husband to assault, but Halle Bhai ran from the spot to the village Marpani and thereafter he brought his brother-in-law Magan (PW-5) from the village Marpani. In the meantime the accused persons had committed gang rape one by one upon the prosecutrix. Magan identified all the culprits and told their name to the prosecutrix. The entire incident took place upto 8:00 PM in the night and thereafter the prosecutrix and her husband went to the house of their uncle at village Juna.

On 17.10.1995 again the prosecutrix and her husband came to the village Marpani and told the entire story to the respectful persons of the village but thereafter they went to their village Pipariya Matoli and told the entire story to the Sarpanch Battu (PW-6). Thereafter on 18.10.1995 they went to the Police Station Garhakota with the help of Sarpanch Battu and lodged the FIR Ex. P-3. She was sent for her medico legal examination to the Government Hospital Garhakota. Dr. Kiran Singh (PW-3) examined the prosecutrix and gave a report Ex. P-4. No external or internal injury was found on her person. Two slides of vaginal slab of the prosecutrix were prepared and handed over to the concerned Constable after sealing them. The police arrested the accused persons and they were directed for their medico legal examination. After due investigation, a charge sheet was filed before the Special Court, Sagar.

The appellants-accused abjured their guilt. They did not take any specific plea in the case, but they have stated that the prosecutrix could not identify the actual culprits and since there was enmity between the witness Magan and the appellants, therefore they were falsely implicated in the matter. Raghuvir (DW-1) was examined as a defence witness to show that he did not perform any identification of the appellants before the prosecutrix.

During the trial, accused Santosh expired. After considering the evidence adduced by the parties, the Special Judge, Sagar acquitted the appellants from the charges of offence u/s 376 of IPC and Section 3(1)(xii) of the Special Act but convicted them for commission of offence punishable u/s 354 of IPC and Section 3(1)(xi) of the Special Act and sentenced as mentioned above.

I have heard the Learned Counsel for the parties.

The learned senior counsel for the appellants has submitted that the evidence given by the prosecutrix was away from the facts mentioned in the FIR. The identity of the appellants could not be established. The Investigation Officer has submitted that the appellants were identified by the prosecutrix before one Raghuvir, but Raghuvir (DW-1) did not corroborate that fact. The prosecutrix has stated that the name of the appellants was told by the witness Magan soon after the incident, whereas Halle Bhai (PW-4) has admitted in his cross examination that the witness Magan told the name of the appellants after two days. Under such circumstances, the appellants are falsely implicated in the matter. It is also submitted by the learned senior counsel for the appellants that there was no charge of offence punishable u/s 3(1)(xi) of the Special Act and the appellants are convicted for that offence without framing of any charge. The criminal case was initiated in the year 1995, and therefore now after 17 years, the case may not be remanded back for fresh trial for the offence u/s 3(1)(xi) of the Special Act. Under such circumstances, it is prayed that the appellants be acquitted from all the charges.

Again the learned senior counsel for the appellants has also submitted that the appellants have faced the trial and appeal for last 17 years. They remained in the custody for more than six months, and therefore their sentence directed by the trial Court may be reduced to the period which they have already undergone in the custody.

On the other hand, Learned Counsel for the State has submitted that the trial Court has rightly convicted and sentenced the appellants, and therefore no interference is warranted from the side of this Court.

After considering the submissions made by Learned Counsel for the parties and looking to the facts and circumstances of the case, it is to be considered that whether the appellants can be convicted for the offence u/s 354 of IPC or Section 3(1)(xi) of the Special Act? If yes, then whether the sentence awarded to the appellants can be reduced?

In the present case, the evidence given by the prosecutrix (PW-2), Halle Bhai (PW-4) and Magan (PW-5) indicates that there is a lot of contradictions between their evidence. The trial Court found that the prosecutrix was not reliable, and therefore the appellants were acquitted from the charges of offence punishable u/s 376 of IPC, but on the same evidence the trial Court found that the appellant Rakesh held the hands of the prosecutrix at that time and other appellants ran towards her husband, and therefore it was concluded that the appellants were the guilty of offence u/s 354 of IPC and consequently, they were also convicted for the offence u/s 3(1)(xi) of the Special Act. It appears that appreciation of evidence has been done by the Special Judge was not in appropriate manner. There was no enmity of the prosecutrix with the appellants, but on the other hand it is also established that the appellants were the workers of the plantation. Magan (PW-5) has admitted in para 5 of his statement that except the accused Suresh remaining accused persons were the watchmen of the plantation, therefore it is possible that some quarrel took place between the husband of the prosecutrix and the appellants, hence they were implicated in the case in such a manner.

The prosecutrix and her husband have stated that they were going to the village Setpur, and therefore appellant Bhairam accompanied to show the way, whereas it is apparent from their evidence that Magan, brother-in-law of Halle Bhai was residing at village Marpani and they could go to the village Marpani. Thereafter with the help of Magan, they could go to the village Setpur. There was no reason shown as to why they were going to village Setpur. It is not possible for anyone that while going to the village Setpur, he could reach in the plantation of village Marpani. It is alleged by the prosecutrix that she was thrown on the earth and four persons committed gang rape upon her and she sustained various abrasions in the incident. She sustained injuries on her back and feet. Her bangles were broken causing some injuries in her hands and her clothings were also torn. In this context, if the evidence of Dr. Kiran Singh (PW-3) is perused, then no external or internal injury found to the prosecutrix. It is true that the prosecutrix was examined by Dr. Kiran after two days of the incident, but there must be some healed wounds etc. to the prosecutrix if such a gang rape would have committed upon her. Under such circumstances, the learned Special Judge has rightly disbelieved the prosecutrix that the appellants had not committed any rape or gang rape upon the prosecutrix.

The prosecutrix and her husband Halle Bhai have stated that the incident took place in the night of 16.10.1995 and thereafter they went to the village Juna and resided in the house of their uncle. Thereafter in the morning one man called them, and therefore they went to the village Marpani. Magan (PW-5) has stated that it was Chhakodi who went to call the prosecutrix and her husband to village Marpani. It is stated by the prosecutrix that again at Marpani the appellants detained the prosecutrix and her husband, whereas Halle Bhai did not say that they were again detained in the morning. Under such circumstances, it is nowhere clear that what was the fun with the prosecutrix and her husband to go back to the village Marpani. If they had resided at village Juna for the entire night, then they could go directly to the police station from village Juna or they could go to village Pipariya Matoli and thereafter they could to go the police station.

Under such circumstances, it is apparent that the story told by the prosecutrix and her husband as well as witness Magan that they were again taken to the village Marpani appears to be incorrect. These witnesses have stated that they tried to meet the Sarpanch of village Chhapra, but he refused to go to the Police Station with them. The prosecutrix went to the Police Station along with the Sarpanch Battu (PW-6), who was the Sarpanch of their village Pipariya Matoli, for the contact with the Sarpanch Battu, the prosecutrix had ample time from village Juna and she could go to her village Pipariya Matoli on the next day and she could lodge an FIR at the Police Station on the next day. The witness Battu (PW-6) has stated that he went with the prosecutrix to the Police Station and FIR was lodged at 2:00 PM in the noon, whereas the FIR Ex. P-3 was lodged at 5:30 PM in the evening. Under such circumstances, according to the FIR, the incident took place on 16.10.1995 at about 8:00 PM, but the FIR was not lodged soon after the incident even on the next day and it was lodged with a delay of 46 hours. The explanation given for that delay appears to be concocted, which cannot be accepted. Under such circumstances, the delay in lodging the FIR indicates that a false story has been cooked by the prosecutrix.

The prosecutrix and her husband as well as Sarpanch Battu have stated that the prosecutrix had moved an application for compensation relating to the gang rape, therefore it was possible that to get the compensation a false report was lodged against the appellants, otherwise the story narrated by the prosecutrix and her husband appears to be unnatural. Learned senior counsel for the appellants has submitted that the appellants were not duly identified at the spot. The prosecutrix has stated in para 9 of her statement that when Magan came to the spot, he told the name of the appellants to the prosecutrix, whereas it is alleged by the prosecutrix that all the accused persons had committed rape with her. But if the statement of witness Magan is perused, then it would be clear that when he was going towards the spot, the accused Santosh met him in the way and he indicated the place where other appellants were there with the prosecutrix. If the accused Santosh was guilty of that crime, then there was no need for him to indicate the spot to the witness Magan could reach to the spot. By the evidence of witness Magan, it would be apparent that the deceased Santosh was not at all the culprit in the case though his name was mentioned in the FIR.

Halle Bhai (PW-4) has admitted in para 7 of his statement that on third day of the incident, when he reached to the village Marpani again, then name of the appellants was informed by the witness Magan. If Magan went to the spot soon after the incident and he saw the appellants, then what was the problem to the witness Magan in not telling the name of the appellants for two days. The evidence given by the witness Halle Bhai (PW-4) appears to be correct to this point that the names of the appellants were told on third day of the incident by the witness Magan, otherwise there was no possibility of any delay in lodging the FIR. If such a fact is accepted from the evidence of Halle Bhai, then it would be clear that the witness Magan never reached to the spot at the time when the appellants were there with the prosecutrix, and therefore the witness Magan could not tell the name of the appellants soon after the incident, because he could not see the appellants.

Under such circumstances, it would be apparent that when Magan could not see the actual culprits and he is claiming that he saw the culprits soon after the incident, then his testimony cannot be believed. If he had not seen the appellants at the time of incident, then how he could tell the names of such appellants to the prosecutrix and her husband.

Magan has stated in his cross examination in chief that one Raghuvir has asked him that to whom he saw in the jungal with the prosecutrix and then he told the names of the appellants. Magan has not stated as to what was the authority to Raghuvir to enquir into the matter. On the contrary, the Investigation Officer B.N.Sharma (PW-7) has admitted in para 4 of his statement that one Raghuvir got arrangement of identification of the appellants before the prosecutrix, whereas Raghuvir is examined as a defence witness (DW-1), who refused to arrange the identification of the appellants before the prosecutrix. On the contrary, the prosecutrix and her husband had hidden the fact that such identification took place before the witness Raghuvir. Under such circumstances, it appears that the names of the appellants were mentioned in the FIR by the prosecutrix, because their names were told by the witness Magan, who could not see the appellants by his own, and therefore he shifted his suspicion on Raghuvir that the appellants were identified before the witness Raghuvir (DW-1).

Under such circumstances, looking to the conduct of the prosecutrix, her husband Halle Bhai and Magan, it appears that in 2-3 days they cooked the story so that the appellants can be implicated in the crime. Looking to their conduct of those two days, it appears that no such crime of gang rape was committed with the prosecutrix, and therefore the testimony of these three witnesses cannot be accepted as it is that the appellants were the persons who used any criminal force upon the prosecutrix to outrage her modesty. The trial Court has convicted the appellants for the offence u/s 354 of IPC without application of mind and without appreciating the evidence. When the testimony of the prosecutrix was not believable, then without appreciating the evidence, the Special Judge was not expected to jump to the conclusion that the appellants were guilty for the offence u/s 354 of IPC. The learned Special Judge has erred in convicting the appellants for the offence u/s 354 of IPC.

It is apparent that no charge of offence punishable u/s 3(1)(xi) of the Special Act was framed by the Special Judge. The charge was framed for commission of offence u/s 3(1)(xii) of the Special Act. The appellants were acquitted from the charges of offence u/s 3(1)(xii) of the Special Act. It is nowhere mentioned in the judgment by the Special Judge that whether the offence u/s 3(1)(xi) of the Special Act was an inferior offence to the offence u/s 376 of IPC or to the offence u/s 3(1)(xii) of the Special Act. Since the offence u/s 3(1)(xi) of the Special Act is a special offence, and therefore it cannot be treated as an inferior offence to the offence u/s 376 of IPC. The offence u/s 354 of IPC could be inferior offence of the offence u/s 376 of IPC, and therefore it appears that the Special Judge convicted the appellants for the offence u/s 3(1) (xi) of the Special Act in the head of the charge of offence u/s 3(1)(xii) of the Special Act, but unfortunately ambit of both the offences is different. The offence u/s 3(1)(xi) of the Special Act cannot be said to be an inferior offence of the same nature as of offence u/s 3(1)(xii) of the Special Act, and therefore by the provisions of Section 222 of Cr.P.C. the appellants could not be convicted for the offence u/s 3(1)(xi) of the Special Act in the charge of offence punishable u/s 3(1)(xii ) of the Special Act. Under such circumstances, the Special Judge has erred in convicting the appellants for commission of offence u/s 3(1)(xi) of the Special Act without framing of any charge.

At present the appellants have faced the trial and appeal for last 17 years, and therefore it would not be proper to remand the case back for fresh trial of the offence u/s 3(1)(xi) of the Special Act. Moreover, it is found that the appellants cannot be convicted for the offence punishable u/s 354 of IPC, hence they cannot be convicted for the offence u/s 3(1)(xi) of the Special Act and hence no fresh trial is required. However, the appellant cannot be convicted for the offence u/s 3(1)(xi) of the Special Act and the trial Court has erred in convicting the appellants for the said offence.

On the basis of above discussion, the instant appeal filed by the appellants deserves to be allowed. Consequently, it is hereby allowed. The conviction and sentence directed by the trial Court for the offence u/s 354 of IPC and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act are hereby set aside. The appellants are acquitted from all the charges appended against them. The appellants would be entitled to get the fine amount back if they have deposited the same before the trial Court.

At present the appellants are on bail. Their presence is no more required, therefore it is directed that their bail bonds shall stand discharged. A copy of this judgment be sent to the trial Court with its record for information and compliance.